California Appellate Court Refuses to Publish Anti-Camera Decision

Robert Farago
by Robert Farago
california appellate court refuses to publish anti camera decision

A California appellate court on Wednesday declined to publish a decision overturning a ticket issued by an unlawful red light camera operation ( view ruling). California Superior Court, San Mateo County Appellate Judge Mark R. Forcum turned down attorney Frank Iwama’s request that he explain his reasoning more fully in a published decision. Unpublished cases cannot be cited as precedent in California, and motorists interested in challenging citations will have to repeat from scratch all arguments about the program’s illegality.

“I am deeply disturbed and saddened that, despite the judge’s courageous action in interpreting the law, the judge has not taken the next step of modifying and certifying his opinion for publication,” Iwama said in a statement. “The publication of the opinion in the Official Reports would have served as a badly needed and useful precedent for the people in seeking guidance in the interpretation and application of the cost-neutrality clause in red-light camera contracts.”

Other California courts have struck down red light camera programs on various legal grounds in cases such as: Franco, Murray, Graham, Williams and Bohl. The Fischetti case actually held published status for a time only later to become depublished by the state supreme court. In court filings, the League of California Cities suggested that allowing such rulings to stand with precedential value would force them to issue refunds or cancel their programs outright, costing millions.

“One of the first principles we all learn in school is the power of the Constitution and the independence and separation of powers between the three branches of government,” Iwama said. “During this difficult economic time, it seems that financial necessity overrules the highest principles between what is right and wrong regardless of potential economic consequence.”

Ken Schmier, Chairman of the Committee for the Rule of Law has been fighting the state’s use of non-publication rules. His cause has gained traction over time. In 2000, the US Court of Appeals for the Eight Circuit issued a scathing decision declaring non-citation rules unconstitutional.

“Some forms of the non-publication rule even forbid citation,” Judge Richard S. Arnold wrote in Anastasoff v. US. “Those courts are saying to the bar: ‘We may have decided this question the opposite way yesterday, but this does not bind us today, and, what’s more, you cannot even tell us what we did yesterday.’ As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.”

This line of reasoning brought the US Judicial Conference in 2006 to adopt a rule that put an end to all non-citation rules in the federal court system. Schmier believes that California’s highest court refuses to follow suit because that would mean relinquishing the power that comes from deciding which cases become the law of the land.

“The idea is that a small group of people (actually the chief justice and a few of his political supporters) will control California’s operative precedent,” Schmier told TheNewspaper. “The red light cases are but one example where one defendant will be treated differently from the rest because he had an attorney appeal the case. But we ask: What kind of police cites people, what kind of prosecutor prosecutes people, and what kind of judge convicts people, all the while knowing that its own appellate court has decided that the people are not to be charged?”


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  • FreedMike FreedMike on Oct 18, 2009
    Daanii2 : October 18th, 2009 at 4:09 pm It is insane. Your Eighth Amendment challenge sounds like a good idea. I’ve thought of challenges under the Fifth, Sixth and Tenth Amendments, but not the Eighth. My plan is to take my wife’s case as far up the state court system as appeals can go. Then turn to the federal court system. Luckily, I’m registered to practice before the Northern District of California federal district court. We’ll see what they think. I'm no attorney, but I don't think you'll be able to make much of an argument using the fifth or sixth amendments. The system isn't self-incriminating, and there are hundreds of precedents the state can cite in which video evidence is admissible in court. I also don't see a Tenth Amendment argument here either - it's the state doing this, not the Feds. I think you should formulate this as a violation of the Eighth Amendment. It may not get the ticket thrown out, but if the fine can be reduced, you reduce the private contractor's profit margin. Make it unprofitable, and they won't stay in business. Problem solved. Just some thoughts... The other pressure that can be brought to bear is political, at the grass roots level. You would have to think that ANYONE who gets tagged with a $436 ticket for something as minor as failing to stop completely at a red light while turning would be beside himself with anger. I would. Maybe the system holds within itself the seeds of its own downfall. Anyway, good luck.

  • Windswords Windswords on Oct 19, 2009

    St Basil’s? I thought for a moment there that was a pic of the California state capital building!

  • Tassos What was the last time we had any good news from Ford? (or GM for that matter?)The last one was probably when Alan Mulally was CEO. Were you even born back then?Fields was a total disaster, then they go hire this clown from Toyota's PR department, the current Ford CEO, Fart-ley or something.He claims to be an auto enthusiast too (unlike Mary Barra who is even worse, but of course always forgiven, as she is the proud owner of a set of female genitals.
  • Tassos I know some would want to own a collectible Mustang. (sure as hell not me. This crappy 'secretary's car' (that was exactly its intended buying demo) was as sophisticated (transl. : CRUDE) as the FLintstone's mobile. Solid Real Axle? Are you effing kidding me?There is a huge number of these around, so they are neither expensive nor valuable.WHen it came out, it was $2,000 or so new. A colleague bought a recent one with the stupid Ecoboost which also promised good fuel economy. He drives a hard bargain and spends time shopping and I remember he paid $37k ( the fool only bought domestic crap, but luckily he is good with his hands and can fix lots of stuff on them).He told me that the alleged fuel economy is obtained only if you drive it like a VERY old lady. WHich defeats the purpose, of course, you might as well buy a used Toyota Yaris (not even a Corolla).
  • MRF 95 T-Bird Back when the Corolla consisted of a wide range of body styles. This wagon, both four door and two door sedans, a shooting brake like three door hatch as well as a sports coupe hatchback. All of which were on the popular cars on the road where I resided.
  • Wjtinfwb Jeez... I've got 3 Ford's and have been a defender due to my overall good experiences but this is getting hard to defend. Thinking the product durability testing that used to take months to rack up 100k miles or more is being replaced with computer simulations that just aren't causing these real-world issues to pop up. More time at the proving ground please...
  • Wjtinfwb Looks like Mazda put more effort into sprucing up a moribund product than Chevy did with the soon to be euthanized '24 Camaro.